Strasbourg, 2 September 2010 CCPE-GT(2010)8
WORKING GROUP OF THE
CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS
Report of the 7th meeting
Strasbourg, 23 – 24 June 2010
Secretariat document, prepared by the
Directorate General of Human Rights and Legal Affairs
1. The Working Group of the Consultative Council of European Prosecutors (CCPE-GT) held its 7th meeting in Strasbourg on 23 and 24 June 2010. The meeting was chaired by Mr Olivier de BAYNAST (France).
2. The agenda and the list of participants are set out in Appendices I and II respectively.
II. Preparation of CCPE joint Opinion No. 5 on the principles of public prosecution as regards juvenile justice
3. The CCPE-GT prepared, during its last meeting (Strasbourg, 24-26 February 2010), a detailed structure (see Report of its 6th meeting, document CCPE-GT(2010)2), designated a Drafting Group composed by A. Boskovic (Montenegro), A. Giraldi (Denmark), P. Polt (Hungary), A. Tasyurt and S. Kaymaz (Turkey), C. Visart de Bocarme (Belgium), J. Zezulova (Czech Republic), A. Zvyagintsev/V. Zymin (Russian Federation) and entrusted H. Range (Germany) with the coordination of the drafting work and the preparation of a pre-draft Opinion.
4. On the basis of this pre-draft document, the CCPE-GT decided to prepare, for its Opinion No.4 on relationships between judges and prosecutors, a brief Opinion containing general principles, to which would be added an explanatory memorandum aimed at explaining the principles contained in the Opinion. The Opinion, as well as its explanatory memorandum would have the following structure :
2) Peculiarities of juvenile justice
3) Juveniles before the hearing
4) Juveniles during the hearing
5) Enforcement of decisions concerning juveniles/Follow-up of the juvenile
5. The Working Group recalls that brief Opinions ensure a better visibility of its work and to better focus on the role of the prosecutor as regards juvenile justice without dealing with the juvenile justice in general which is widely adressed in other instruments of the Council of Europe. The Opinion should not exceed two pages.
6. The CCPE-GT decided to use in the whole document the term « mineur » in French and « juvenile » in English in order to be consistent with the relevant definitions contained in Recommendations Rec(2003)20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice; Rec(2006)2 on the European Prison Rules and Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures.
7. The Working Group prepared a draft Opinion as it appears in Appendix III of this report. It prepared also a draft explanatory memorandum containing the contributions of the members of the drafting Group (Document CCPE-GT(2010)7). It entrusted H. Range and the Secretariat to finalise the explanatory memorandum in the light of the principles which were included in the Opinion, to send it to the members of the CCPE-GT at the end of August for possible comments before sending at all members of the CCPE at the beginning of October.
III. Preparation of the CCPE’s opinion for 2011
8. The Working Group held an exchange of views on the theme of the Opinion foreseen for 2011, which should concern the relationship between prosecutors and prison administration. It noted the importance of limiting the subject to the relations between prosecutors and prison authorities, to consider in the Opinion only the prison as a detention place. It should also take into account that in some member states, prosecutors have no competences as regards prisons. Recommendation Rec (2006) 2 on the European Prison Rules should also be duly taken into account during the preparation of the Opinion. Moreover, the CCPE-GT expressed the wish to work in close co-operation with the department, within the Council of Europe, responsible for organizing Conferences of Directors of Prison Administration (CDAP).
9. Subject to the adoption of the terms of reference of the CCPE for 2011 by the Committee of Ministers, the Working Group entrusted P Polt with the drafting of a questionnaire concerning the prosecutors and the prison administration whose replies would serve as a basis for the drafting of a draft Opinion on this topic. This questionnaire should be examined with a view of its adoption by members of the CCPE at the next plenary meeting.
IV. Other business
10. The Secretariat informed the Working Group that the 5th plenary meeting of the CCPE will be held in Yerevan (Armenia) from 19 to 21 October 2010 on the invitation of the Prosecutor General of Armenia.
APPENDIX I - AGENDA
1. Opening of the meeting
2. Adoption of the agenda
3. Communication by the President, members of the Bureau and the Secretariat
4. Preparation of the CCPE Opinion No.5 on the principles of public prosecution as regards juvenile justice
5. Discussion of the overall working programme for 2010
§ Celebration of the 10th anniversary of the Recommendation 2000(19)
§ Relationship between prosecutors and prison administration (task for 2011)
6. Any other business
LISTE OF PARTICIPANTS / LISTE DES PARTICIPANTS
MEMBERS CCPE-GT / MEMBRES CCPE-GT
BELGIUM / BELGIQUE
M. Cedric VISART de BOCARME, Procureur Général de Liège, LIEGE
CZECH REPUBLIC / REPUBLIQUE TCHEQUE
Ms Jana ZEZULOVA, Public Prosecutor, Supreme Public Prosecutor’s Office, Analytic and Legislative Department, BRNO
DENMARK / DANEMARK
Ms Alessandra GIRALDI, Deputy Chief Prosecutor, COPENHAGEN
GERMANY / ALLEMAGNE
Mr Harald RANGE, Generalstaatsanwalt, Generalstaatsanwaltschaft, CELLE,
HUNGARY / HONGRIE
Mr Peter POLT, Chief Prosecutor, Head of Criminal Trial Cases, Office of the Prosecutor General, BUDAPEST
Mr Veselin VUCKOVIC, Deputy Supreme State Prosecutor, Supreme State Prosecutor’s Office, PODGORICA
Ms Ana BOSKOVIC, Assistant for International Cooperation, Supreme State Prosecutor's Office, PODGORICA
RUSSIAN FEDERATION / FÉDÉRATION DE RUSSIE
Mr Alexander Grigorievich ZVYAGINTSEV, Deputy Prosecutor General, Office of the Prosecutor General, MOSCOW
Mr Vladimir ZIMIN, First Deputy Chief, Prosecutor General’s Office, the General Department of International Legal Co-operation, MOSCOW
Ms. N.V. Ruzhitskaya interpreter
SPAIN / ESPAGNE
Mr Antonio VERCHER NOGUERA, Deputy Attorney General, Fiscalia General del Estado, MADRID
TURKEY / TURQUIE
Mr Ahmet TASYURT, Public Prosecutor, Court of Cassation, GANKAYA / ANKARA
MEMBERS CCPE-BU / MEMBRES CCPE-BU
FINLAND / FINLANDE
Ms Raija TOIVIAINEN, State Prosecutor, Head of the International Unit, HELSINKI
M. Olivier de BAYNAST, Procureur Général près de la Cour d’Appel d’Amiens, AMIENS
ITALY / ITALIE
M. Antonio MURA, Deputy Prosecutor General of the Supreme Court, ROMA
M. João Manuel DA SILVA MIGUEL, Eurojust, THE HAGUE
Ecole Nationale de la Magistrature
Mme Marion METELLUS
Mme Perrine LANNELONGUE
Mme Sophie DURBECQ
COUNCIL OF EUROPE’S SECRETARIAT /
SECRETARIAT DU CONSEIL DE L’EUROPE
Directorate General of Human Rights and Legal Affairs/
Direction Général des Droits de l’Homme et des Affaires Juridiques
E-mail : email@example.com
Fax : +33 (0) 88 41 37 43
Mme Muriel DECOT, Secretary of the CCJE, Secrétaire du CCJE
Tél: +33 (0)3 90 21 44 55, E-mail : firstname.lastname@example.org
Mme Christel SCHURRER, Co-Secretary of the CCJE, Co-Secrétaire du CCJE
Tél : + 33 (0)9 21 56 12, E-mail : email@example.com
Mme Emily WALKER, Assistant / Assistante,
Tel. +33 (0)3 90 21 48 39, E-mail: firstname.lastname@example.org
INTERPRETERS / INTERPRÈTES
Mme Rebecca BOWEN-YOBE
M. Didier JUNGLING
Draft Opinion No. 5 of the CCPE on
“The role of public prosecution in juvenile justice”
prepared by the CCPE-GT at its 7th meeting
1. Public Prosecutors are public authorities who, on behalf of society and in the public interest, ensure the application of the law where a breach of the law carries a criminal sanction. In doing so, prosecutors take into account both the rights of individuals and the necessary effectiveness of the criminal justice system, in accordance with Recommendation Rec(2000)19 of the Committee of Ministers to member States on the role of public prosecution in the criminal justice system.
2. This Opinion aims to ensure that in all proceedings regarding juveniles, in which public prosecutors are involved, the fundamental Rights are applied with due regard to the level of maturity, vulnerability and mental capacity of the juvenile, being a juvenile offender, a victim or a witness. Compliance with these principles applies before the trial, during the hearing, during the enforcement of the decision and also during the follow-up of the juvenile at the end of the procedure.
3. In cases involving juveniles, prosecutors should pay special attention to striking the appropriate balance between, on the one hand the interest of society and the goals of criminal justice, and on the other hand the special needs and vulnerability of juveniles.
4. In States where prosecutors have competences outside the criminal law field (especially in family or custodian law), they should always promote fundamental rights and freedoms, and in particular principles concerning protection of juvenile as stated in this Opinion.
5. The role of prosecutors varies considerably from one country to another and the aim of this Opinion is to establish guidelines that should guide the action of all prosecutors involved in the juvenile justice. The following guidelines apply whithin the competences of the prosecutors and in accordance with their national law.
6. “Juvenile/minor”, any person below the age of 18 years;
7. "Juvenile offender", any person below the age of 18, who is alleged to have or who has committed an offense.
8. “Offence”,. For the purpose of this Opinion, any act or omission that infringes the law and is dealt with by a criminal court or any other judicial or administrative authority.
9. Member States could choose to extend the principles of this Opinion to the young adult offenders.
Peculiarities of the juvenile justice
10. Juvenile justice, because of the fragility of those who are submitted to it, should receive special attention from all social or judicial actors. Whatever the criminal justice system which is applied, the prosecutor should take into account the state of minority and make every effort to respect and promote the implementation of legal provisions relating to procedure and sanctions and pay particular attention to the rights of defence. The minor is indeed a particular litigant.
11. Sanctions should take into account education, history and personality of the concerned juveniles and not just punish a criminal offense or a behaviour. Measures aiming at restricting the freedom of juveniles should be exceptional, specified by law and limited to the strict requirements in order to protect the society.
12. The prosecutor should ensure that any contact of the juvenile, being an offender, a victim or a witness, with the justice system should be subject to special attention, in order to have a personal welcome and allowing him/her to receive the necessary information, by means understandable for his/her age, concerning the conduct of the proceedings, the role of judicial actors and the measures taken for him/her.
13. Prosecutors should have the necessary means to exercice their competences with juveniles or these means should be available to the competent services in charge of juveniles. In particular, a system of recruitment, appropriate training as well as necessary staff, means and specialised services should be provided for to them.
14. Prosecution services should have specialised units or offices for juvenile delinquency.
15. In criminal investigations or proceedings involving juveniles, prosecutors should pay special attention to the timeframe and should make sure that such cases are treated as priority and carried out without any unjustified delay.
16. The interest of society requires that the media be provided with the necessary information concerning the functioning of the justice system for the public.1 However, exposure to the media may be particularly injuring to juveniles involved in criminal investigations and procedures. Prosecutors should therefore be especially aware of their responsibility not to reveal any information that might violate the rights of the juveniles involved or, information that might lead to the repeat victimisation of juvenile victims.
17. The exchange of experiences among prosecutors and international co-operation on the topic of juvenile justice is highly recommanded.
18. Prosecutors are convinced of the necessity to implement preventive measures for juveniles who are likely to commit offences because of their fragility.
Juveniles before the trial
19. In order to have a better knowledge of the situation of the juvenile involved in a procedure, prosecution services should play a key role in co-ordination and co-operation of the main actors in the criminal investigation phase, e.g. police, probation and social services.
20. Prosecutors should appropriately seek the advice of social services or specialised child protection services prior to making the decision on whether or not to prosecute the offences and prior to taking the decision on which sanction to propose to the Court. They should also be aware of and use, if appropriate, technical means and experts.
21. Having in mind the possible damaging impact of criminal proceedings on the future development of juveniles, prosecutors should, to the widest possible extent, seek alternatives to prosecution of juvenile offenders, where such alternatives will constitute a proper judicial response to the offence, taking into consideration the interest of the victims and of the general public and being consistent with the goals of criminal justice2.
22. Prosecutors should be especially cautious in considering whether the purpose of pre-trial detention cannot be achieved through less intrusive measures and ensure that pre-trial detention of juveniles takes place under conditions that can help minimise the possible damaging effects of the detention. According to international standards, pre-trial detention of juveniles should only be used as a measure of last resort and for the shortest possible time.
23. Juvenile prosecutors should carry out inspections with a frequency in police holding facilities, in which the detention of juvenile suspects must be provisional, exceptional and only for a very short period.
24. Guidelines on appropriate measures for different types of juvenile offences could be useful to seek for equality before the law.
Juveniles in the trial
25. The importance of ensuring the well-being and the interests of especially juveniles during trial should be a value shared by all prosecutors. Prosecutors should prevent any harm to offenders, victims and witnesses by the criminal procedure.
26. A protective approach to juveniles involved in criminal proceedings can help ensure that these proceedings do not aggravate the trauma suffered by a juvenile victim.
27. The prosecutor should also ensure that the juvenile is able to know the charges retained against him/her, to fully exercise his/her proper defence and benefit from a legal assistance in all proceedings where he/she is involved, even free of charge. The juvenile should also be able to speak freely before the competent court.
Execution/Follow-up of the juvenile
28. Prosecutors should promote that educational and social measures, such as reparation, instructions, prohibitions, supervision by social services, treatment, placement in juvenile facilities, mediation, as well as probation, are used to the widest possible extent, while at the same time taking into account the interest of the victim, the general public as well as the goals of criminal justice.
29. Juvenile prosecutors should supervise the legality of the implementation of all sanctions, as well as education in specialised facilities for young offenders. Prosecutors should carry out inspections with a regular frequency, in all penitentiary establishments or specialised houses for young offenders.
30. Prosecutors should ensure that juveniles, who have committed offences and who are subject to a judicial measure or sanction, should be monitored and assisted in order to avoid the risk of recurrence.
1 See The Bordeaux Declaration.
2 See Opinion No. 2 of the CCPE on “alternatives to prosecution”.